Lawfare Daily: Keith Whittington on the Law, Politics, and Purpose of the Impeachment Power

[Intro]

Keith Whittington: So I think one thing that's notable about the impeachment power is it's the only mechanism included in the U.S. Constitution to remove members of the other branches of government. So only Congress is empowered to remove members of the other branches which are otherwise entirely independent.

Jack Goldsmith: It's the Lawfare Podcast. I'm Jack Goldsmith of Harvard Law School with Keith Whittington, the David Boies Professor of Law at Yale Law School.

Keith Whittington: We've found other ways of remedying those impeachable offenses, including notably the power of judicial review. And so we're much more likely to go to court and try to litigate when we see things that could properly be called impeachable offenses than to go to Congress and try to remove an officer for engaging in that kind of conduct in the first place.

Jack Goldsmith: Today we're talking about Keith's new book: “The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool.”

[Main Podcast]

Keith, we've been through a lot of impeachments in recent years, and there are a lot of books on impeachments that were written in those contexts, and you've written a new book on impeachment. So the question is, why write a new book on impeachment?

Keith Whittington: An extraordinary number of impeachments. And so, you might imagine that we already know everything there is to know about impeachments because we've had more experience with it than any prior generation in American history. So we're all experts.

Unfortunately, I don't think we're all experts. I don't think the members of Congress who are actually having to conduct the impeachments carry themselves off very well. And I think they tend to sow confusion about the impeachment power.

We have had a lot of books over the last many years, actually written about the impeachment power. I think many of those have been very focused, you know, sometimes with good reason, very focused on particular presidents and either justifying the need to impeach that president and remove that president or try to defend that particular president.

Here I want to back away from attacking or defending any particular individual in office and think about the impeachment power more broadly, more generally. I hope then there's a longer shelf life to this project and try to think about how we ought to approach impeachments in the sort of unknown future with the range of kinds of offenses and activities that might arise down the road, but informed by some of the things that we've seen more recently.

So there's this lovely short book by Charles Black that was written during the Watergate period, that’s still well worth reading, but it feels very dated. And it doesn't take into account I think a lot of what we've learned, but also worried about in subsequent decades. And so, something that tries to get at the power abstractly, but also grapples with the kinds of things that are on our minds, seemed still necessary and useful.

Jack Goldsmith: Okay, well, I think you succeed in that respect. And I actually think that your perspective is somewhat different than most, if not all of the books written in recent years. And I'll get to that in a second. But maybe we should just remind everyone what the Constitution says about impeachment.   How does it happen? What is the standard? What are the remedies, et cetera. Could you just walk through that?

Keith Whittington: Yeah, so unfortunately, the impeachment power is spread out across several different parts of the Constitution. It's not written as compactly, and maybe not as clearly as some of the state constitutions tend to be, for example, that I think had the benefit of thinking about this a little differently than the founders did. But at heart the impeachment power, as it's written into the federal Constitution, has several components.

One is that it empowers the House of Representatives to have the sole power of impeachment. It doesn't tell us very much more about what the sole power of impeachment actually might be but it specifies that the House has it. And then leaves it up to the House to figure out how to actually do that. And in practice, that means a kind of accusatory power that the House can investigate potential impeachable offenses and then bring those to the Senate in order to actually prosecute impeachable offenses in the Senate in a trial context.

And the Constitution specifies that the Senate has the sole power to try impeachments. And so when impeachment is brought to the Senate the Senate can't initiate its own process. But once the House comes to the Senate and says impeachable offenses have been committed, then the Senate is the only forum that can hold a trial on that. And then the Constitution also specifies that the Senate is limited as to what kind of punishments it can impose if it convicts on the basis of impeachable offenses, it can do no more than remove somebody from office and bar them from holding office in the future.

And then as part of that general discussion, it also specifies the standard against which impeachable offenses are to be measured. And so it says the civil officers of the United States, including the president and vice president may be tried for impeachable offenses, which include treason, bribery, and high crimes and misdemeanors. It doesn't really say much more than that in terms of what might count as impeachable offenses more generally. So it left us with a great deal of uncertainty about what constitutes high crimes and misdemeanors. That's where a lot of the debating has occurred subsequently.

And I guess the other thing that ought to be mentioned that's particularly important about what the text actually tells us about the impeachment power is that while it doesn't say much about the House, the House simply has the power to impeach. When it comes to conviction, the text is specific, that it requires a supermajority in the Senate in order to convict, which has proven to be quite important, because it's relatively hard to get that kind of supermajority in the Senate to actually convict an officer. And so it's a relatively easy hurdle to bring impeachment charges, a much higher hurdle to actually persuade the Senate to get enough votes together to convict

Jack Goldsmith: At some point in the book, you pointed out something that I guess I knew, but hadn't really thought about it and that is that I'll put it in the form of a question: what does the impeachment power and its placement in Article One, tell us about the relative importance of Congress?

Keith Whittington: So, I think one thing that's notable about the impeachment power is it's the only mechanism included in the U.S. Constitution to remove members of the other branches of government. So only Congress is empowered to remove members of the other branches, which are otherwise entirely independent of Congress. Only Congress can move executive officers and only Congress can reach into the judiciary and remove judicial officers.

Obviously, the president can remove lower-level executive officers on his own, or at least so we've construed the Constitution to allow the president to have that authority. And likewise, members of Congress can expel other members of the legislature.

But the constitutional design is really one that tries to create three highly independent branches of government. So it's unusual for any of the branches to have this capacity to remove officers of the other branches. And this has sometimes been invoked by members of Congress seeking to, particularly pursue presidential impeachments, to emphasize the fact that Congress has the ultimate trump card in separation of powers battles with the other branches of government.

The other branches have their own powers. They can use vis-à-vis Congress and the other branches, but it's only Congress that has the capacity to actually remove other officers if push comes to shove.  And moreover, I think that does tell us something fundamental about the nature of the constitutional scheme. It's the most democratic branch, it's the elected branch of the government that has the capacity to ultimately supervise and control and take action against the other two branches if necessary.

We'd have a very different looking constitutional system if, for example, presidents were somehow empowered to remove members of Congress that they didn't like. Our presidents could simply fire members of the judiciary the way that they can fire members of the executive branch. And so we have three quite independent branches but there is a kind of hierarchy among them and Congress ultimately sits at the top of that.

Jack Goldsmith: So, if I had to describe in a sentence what was unique about your book, it would be that the claim that the impeachment power and understanding the impeachment power is too important to be left to the lawyers. Is that a fair summary?

Keith Whittington: Yeah, it's a fair summary. I like lawyers. Lawyers are very useful for lots of purposes. But they do, I think, tend to emphasize some elements of our constitutional scheme and downplay other elements of our constitutional scheme. And the impeachment power I think is, has legal elements and legalistic elements that we need to take into account. But also, fundamentally, it's part of the constitutional system of checks and balances more broadly. And that's fundamentally a political system.

And it operates for political purposes. It's deployed by political actors. And as a consequence, I think we need to bear in mind that the impeachment power is part of that larger constitutional scheme that needs to work from a political perspective as well as a legal perspective. Which means that members of Congress, when thinking about whether or not to impeach, need to be thinking about questions not only what's the proper meaning, what are the limitations of high crimes and misdemeanors, for example? What really properly counts within the scope of impeachable offenses, and so when am I allowed to use this power? But also when is it useful to use this power? What are the other tools and remedies I have available to me to try to grapple with the problems that I see in front of me? Is impeachment the most useful vehicle for trying to address certain concerns or are there other things I ought to be doing?

Instead, and moreover, it's, I think, incumbent on members of Congress to be thinking down the game tree and imagining how is this going to play out. So if we actually pursued impeachment, it's not enough just to get all excited and say, I care about this a lot. And therefore, we really ought to impeach somebody. But instead you have to be thinking about, can I actually get the votes in Congress in the House first to impeach? Can I actually get the votes in the Senate to convict? What's going to be the popular reception of that process? And being realistic about those likelihoods as we move through the impeachment process ought to inform what you do at those early stages.

It doesn't necessarily mean you should pursue an impeachment if you think it's going to be hopeless at some future stage. But you need to be taking that into account. And again, thinking politically about why are we doing this? Why are we making this trip if we know what the final destination is going to wind up looking like? And we ought to at least be realistic and self conscious about that process as we embark on it.

Jack Goldsmith: Okay, I want to come back to the purposes of impeachment because you think there are many and what it's useful for. But first, let's just spend a bit of time talking about what you referred to earlier as the hardest part of the substantive standard for impeachment, namely high crimes and misdemeanors. And you walk through several possibilities for what this might mean. So how should we think about what counts as a high crime or misdemeanor? And in telling us that, tell us how you derive these conclusions.

Keith Whittington: So we can look a little bit at what the founding generation is thinking when they're writing this language. And so we can do the usual originalist move of trying to think about what the previous history is behind the language of high crimes and misdemeanors, to what degree is this a legal term of art that's being deployed in the Constitution.

And I think if we go through that process, we'll find some broad guidelines as to what high crimes and misdemeanors are. But we'll also discover that there's not a lot of certainty about what the term means. And so even as a term of art within the British parliamentary practice high crimes and misdemeanors is a relatively new one by time the founders are borrowing it and writing it into the constitutional text.

And moreover, they're simultaneously modifying the British practice. And so they're trying to bring on board aspects of the British practice, but they're also trying to change aspects of this British practice. So for example, they want to leave out some of the more purely criminal prosecutions that occurred in the British impeachment context and exclude those from the American impeachment context. And so they're modifying what the scope of the impeachment power is, even as they're trying to borrow it and embed it into the U.S. Constitution. And so we can start with original meaning, but I think that only takes us so far.

And then we have to look at what's the practice that's developed over time and what's the purposes for which we have this power in the first place. And the purposes I think are really critical, that the founders in particular are grappling with this problem as they're designing the new federal government. They've decided they want a presidency and they want an executive branch that's going to be independent, which didn't exist under the Articles of Confederation, but they know this is going to be a very powerful office. And there's potentially going to be the capacity for extreme abuses of power that are going to be extraordinarily dangerous if left unchecked.

And they've designed other kinds of checks and balances on presidential power. But the thing that continues to worry them is if we have relatively long terms of office for a presidency, like four year terms, for example, which by their standards is an extremely long term of office because they're used to one year terms of offices being sort of the default time period for any kind of political office. So they're imagining, okay, we're gonna put somebody in office for four years. And then we're going to subject them to reelection so there's a possibility of removing them at the end of the four years. But that's a long time for something to go wrong potentially, and you need some mechanism that's going to allow you to remove somebody more quickly and immediately than just trying to wait them out for three or four years down the road over the course of their presidency.

And so, it's the problem of the presidency that really first focuses their attention on the impeachment power. It's the problem of the presidency that makes them want something that's going to be flexible enough that it can deal with the wide range of abuses and problems that you might encounter with a powerful local actor who you can't tolerate continuing to exercise the public trust. But at the same time, they're also very concerned that they need the presidency and they need the executive branch to be independent of Congress. And so they're trying to balance this need to have a failsafe by which you can remove a president, but also make it relatively hard to use so Congress doesn't just put the president under their thumb.

And our practice over time has emphasized that kind of flexibility that you don't want to overuse the power. And in particular, we don't want to use the power and shouldn't use the power as it’s traditionally understood outside the scope of the constitutional power, properly understood, to use the power simply to solve routine political disagreements. So, the fact that you disagree with the policy decisions being made by the members of the other branches has historically been understood as not sufficient to justify an impeachment and not properly within the scope of the impeachment power.

But on the other hand, you need a lot of flexibility for the wide range of unpredictable ways in which future officers might abuse their powers or make themselves intolerable in the office and need be removed. And so we have to retain that kind of flexibility, and ultimately an unavoidable judgment on the part of Congress about when do you actually need to make use of this power and when do we actually need to remove this official before they are otherwise scheduled to depart their office?

Jack Goldsmith: Just to make sure I understand, it requires political judgment, but you don't think it's completely open end to political judgment. For example, you reject the inkblot theory of impeachment. You reject the theory that only criminal offenses are subject to impeachment. So it's not a purely open end to political judgment, correct?

Keith Whittington: I think that's right. So, Gerald Ford somewhat infamously suggests when he is in Congress and in the House of Representatives that the impeachment power is too hard to figure out what the thing might mean and so it just must mean whatever it is Congress is willing to impeach somebody for. And we've, as academics, at least, and I think really the traditional practice under Congress throughout American history has really rejected that kind of view, that if you can muster enough votes, you can do whatever you want with the impeachment power.

There's some realist sense in which that might be true. But as a proper understanding of the scope of the impeachment power, we should recognize that some kinds of uses of the impeachment power, I think would genuinely be understood as abuses of that power and not properly within the scope of the power. And so we can't just say, just because you can get a majority in the House to impeach somebody, you can impeach them for whatever you want.

There are some standards here. But the standards are ones that focus on thinking about what kind of threat is this person posing to the republic more generally, to the operation of the political system, and is their continued presence in office fundamentally incompatible with the public trust as we understand it.

Jack Goldsmith: So described that way, it gets at something real and distinguishable, but it involves so much subjective judgment. I'm going to give a  couple of examples that you give and then ask you a few questions about them. And these are examples that are impeachable offenses that clearly aren't criminal things, but they are abusive office or dangerous actions.

And you say, if the president were to have a sudden conversion to pacifism and order the American military to immediately lay down its arms and abandon their posts, Congress need not stand idly by. So maybe, but what if a president decided, you know, the president really wanted to disengage from American militarism, exercising the commander-in-chief clause, wanted to really pull back. Maybe the president ran on it. Maybe the president didn't, but I mean, no president is going to engage in that very extreme hypothetical, but you can imagine presidents really pulling back for whatever reason. And is that really an impeachable offense? I mean, how does one draw those lines.

Keith Whittington: Well, I think it's not easy to draw the lines. In particular, while on the one hand, we think that mere policy disagreements should not be sufficient to impeach. On the other hand, there are things that are hard to distinguish from, is this a policy choice or is this something else? When we think it poses a kind of extreme threat to the Republic.

And you see this sort of lack of clarity and uncertainty in the discussions that are occurring in the Philadelphia Convention itself as they're trying to draft the impeachment power and thinking about why you might need an impeachment power. The kinds of examples that come to their mind, I think, are not cleanly distinct from things we might think of as a kind of policy difference.

And likewise, historically, as members of Congress struggled to try to figure out when can you impeach, they are sometimes thinking about extreme examples, but extreme examples we might think are fundamentally policy decisions because they are decisions about how do I use the power that I'm using.

And one thing that's important about the impeachment power is it's open to use against what we might think of as abuses of office, which is to say misuses of the discretionary authority of government officials. So we don't think it's necessarily the case that you can only use it if a government official has exceeded the scope of their office or claim powers they don't properly have. We think sometimes you can properly impeach and remove an officer for using powers they, in fact, properly have. But they're using them in a way that is extraordinarily dangerous to the republic as we understand it and the future of the republic as we understand it.

And so a case like a president who's converted to pacifism has individually decided the military needs to stand down, is in some ways making a kind of policy choice. But on the other hand, it's a policy choice that is at such extreme divergence from the rest of the political community that you can't understand, I think that somebody can be empowered to make those kind of drastic individual choices on their own.

And so, I think Congress has to be cautious about when to deploy that and has to think carefully about, okay, is this a kind of policy decision that you can afford to wait on? Are there other tools available to try to counter the president's decision making? Is this something you can wait to the next election, let the voters weigh in as to whether or not they think this is a good idea?

There are also going to be circumstances in which the president is doing things that are so dramatic and so unexpected and so outside of the political mainstream that the rest of the political system may well look at it and say one person shouldn't be able to make that kind of choice and commit us to consequences that are gonna not be possible to fix down the road. And so as a consequence, we might have to make removal decisions in the meantime.

Jack Goldsmith: I don't want to chisel you to death with hypotheticals because that's not fair because we need to, we would need to know a lot more facts to answer whether something satisfied high crimes or misdemeanors. But what about the opposite situation of the president using force unilaterally in accordance with what the president deems to be entirely lawful authority under longstanding OLC opinions, you know, the invasion, maybe of Libya, to take an example that was not authorized by Congress, that was controversial, that arguably violated the War Powers Resolution. Does something like that, just to take an example, would that come close to the line of an impeachable offense in your view?

Keith Whittington: Yeah, I think it's a plausibly impeachable offense. And so, it does not bother me to think that presidents have in fact engaged in impeachable offenses. And then Congress has looked at those potential impeachable offenses and has chosen not to impeach, either because they don't think they're so extreme that the Congress needs to take action because the Congress thinks there are other tools they can use.

In some cases Congress may well look at what the president's doing and think we agree with the substance of the policy, even though it's kind of dubious the legal authority on which the president's exercising it in that kind of case. And I think a lot of war makings effectively winds up looking like that, where you would hope that Congress would be much more proactive in thinking about when we're going to get in military action. And they ought to take their own constitutional responsibilities much more seriously in being involved in those decisions.

But if they're not going to, and instead they're just simply going to sit on the sidelines and watch the president taking unilateral military action, one vehicle they have for saying, okay, well now you've decided on that military action that we really didn't want you to take and that's way beyond the pale, is you pull the president back by threatening to impeach him, on the basis of it.

And at that level, it's sort of a second best way of how we would operate our warmaking power, I think. But I think it's within the scope of congressional authority, and how to think about the impeachment power, to imagine that even if we understand the president is having authority to bomb Libya, for example, on his own and he's got some lawyers and the executive branch who tell him he has that authority, that's not enough to shield him from some kind of congressional response. Including a potential congressional response of saying, that may be within your legal authority to do, but it's an abuse of power, such that you can't be trusted to continue to exercise this power going forward.

Jack Goldsmith: So I want to underscore something that I think is implicit in what you said and that is clear in the book. And that is, as I understand it, you think there's a two-step process. First, there's the process of determining what counts as a high crime or misdemeanor and that involves an element of political judgment, among other things. But then there's a second question that also involves an exercise of judgment about whether, even if the standard is satisfied, the remedy of impeachment should be pursued. Is that right?

Keith Whittington: Yes. Yes, I think at that level, the choice to impeach, and I think even the choice to convict is ultimately a discretionary one. That the House has the authority to impeach if it wants to, and impeach if it thinks it's useful and productive and necessary. But it can look out into the world and observe the fact that impeachable offenses have occurred, and yet decide it is constitutionally proper not to take action on those, and there's a variety of reasons why they might decide it's constitutionally proper to not take action.

And among them is we're about to have an election. We'll let the voters decide this one, or, yeah, we think this is an abuse, or we think this is actually illegal, but we have other tools to deal with it. Or the consequences of this abuse are so small that it's worth tolerating these mistakes rather than try to bring out the heavy artillery of impeaching.

Or simply the realistic calculation of we don't have the votes. So, we think we ought to impeach. We're convinced in the House that we ought to impeach and this person needs to be removed. But we know when it gets to the Senate, it's going to be dead on arrival. And so, then if you're a member of Congress, sincerely convinced that impeachable offenses have occurred and moreover, even if you're sincerely convinced the best option for the country would be that this person needs to be removed, you still have to think about the fact of, I can't do that on my own. I need the Senate to go along with it, and if I can't persuade them, then what should you do?

And sometimes the answer is, okay, well, then you need to set the impeachment power aside and move on and try to think about other kinds of remedies that might be more effective.

Jack Goldsmith: Okay. Many people think that the main or singular goal of impeachment is removing an official from office. We've been talking mainly about presidents, but it also applies to judges. And everything you said about worry about the tenure of presidents applies, especially to judges as well, obviously, who have life tenure. But you go through a range of possible goals or aims of impeachment. Can you walk us through those? And why are the ones beyond removal important?

Keith Whittington: Yeah, so removal is the obvious goal, and often it's the one that is most central to any effort that we might engage in to remove presidents. But I first became interested in the impeachment power by looking at some very high profile historical impeachments: impeachment of Andrew Johnson, for example, impeachment of Justice Samuel Chase in the Jeffersonian period.

And removal is clearly part of what's at issue in those impeachments. There's a genuine desire on the part of advocates of impeachment to remove those officers from public power, given what they were doing.

But there was also a genuine interest and one of the consequences of those impeachment episodes was to rethink the set of constitutional norms and practices that surround power. And so one thing that you can use the impeachment power for, is to force a conversation and ultimately a political settlement as to how people ought to conduct themselves in offices going forward.

And those are not so much retrospective judgments about did you behave very badly yesterday that it justifies us removing you today. But also the forward looking judgment about how should we expect our presidents to conduct themselves? How should we expect our judges to conduct themselves in the future?

So to take the Samuel Chase impeachment for example, in the Jeffersonian era, we have the beginnings of partisan politics in America. And Samuel Chase, as sitting Supreme Court Justice, goes out on the hustings to campaign on behalf of Federalists, including President John Adams.

The Jeffersonians think this is an inappropriate thing for a sitting federal judge to do, but the norms are not well established at all at the time as to whether this is actually an appropriate thing for a sitting federal judge to do. And one thing that you can accomplish by impeaching or even threatening to impeach a judge under those circumstances is to convey a clear message, not only to that judge, but to future judges, don't do that anymore.

And ultimately, part of what's important about Congress having that power is that kind of political settlement can occur in Congress. This elected branch with the authority to make these important determinations about what are our constitutional norms and practices surrounding a variety of offices.

Likewise, the impeachment power is a mechanism for investigation. And we've become used to oversight powers, investigatory powers by Congress more generally. The Supreme Court has recognized investigatory powers on the part of Congress through primarily the mechanism of saying, well, you need some investigative powers in order to be able to make legislation.

So you have to engage in fact finding before you can engage in some policy making. And so you have to do some investigation as part of that process. But then has tried, mostly at a level of high principle, to suggest, well, there's some limitations and, and constraints on what kind of investigations you can do, given that the purpose of investigations primarily is to help you in the legislative process, as such.

Well, the impeachment power is an entirely different kind of tool that Congress has constitutionally. And part of the virtue of that tool is precisely to try to investigate what's happening inside other branches of government. What are other officers of the government doing? How are they conducting their affairs?

And make visible and transparent how they're conducting their affairs. In part, in order to start the determination of whether or not you ought to then remove that person from office, but it may be simply again, as is true of a lot of investigatory work, it may be simply exposing the bad conduct is sufficient to solve the problem.

And so one thing the impeachment power does is provide us with a kind of investigatory authority for Congress in circumstances where, that a traditional investigatory process may not always be fully, fully sufficient.

Jack Goldsmith: So you say in the book that the inquiry by the select committee to investigate the January 6th attack on the Capitol was properly the work of the House under its impeachment power. And so explain that and I guess the question is, and I think I know what the answer is, but I'm asking it anyway. What difference does it make?

Keith Whittington: Well, it may not make that much practical difference in some ways, especially given how we've construed and practiced the investigatory power of the House across American history where we've understood it to be pretty broad. And given the House a lot of flexibility, as well as the Senate for that matter, a lot of flexibility about how they conduct their investigations.

But I think that what the January 6th Committee wound up doing was trying to fundamentally focus its attention on what did the president do, President Trump, in those weeks and days, leading up to the election, immediately day after the election and leading up to particular January 6th and the certification of the winner of the next election.

In that sort of effort to identify what is that officer up to during a period of time and are they engaged in misconduct of a very fundamental sort that is potentially even threatening to the future of American democracy and the workings of the constitutional republic, is the very heart of what we expect the impeachment power to be about and to do.

There is some tension, though, that between investigatory work on the one hand and removal work on the other hand. And so, recognizing that the impeachment power can be useful for both things, often those are going to work hand in hand, but sometimes there's going to be some tensions between them.

So, for example, if you imagine a president is conducting himself in a way that is so extraordinarily dangerous to the future of the republic that they need to be immediately removed from office, which of course is the nightmare scenario the founders are most concerned about, is that possibility. You just can't wait. There's an emergency. You've got to remove this guy from power as, as quickly as humanly possible. And the impeachment power is a mechanism for doing that.

Well you can move very quickly. If you're determined to do it with the impeachment power, but that doesn't leave much room for actual investigation in the process. And one of the complications of the January 6th situation is there are a lot of unknowns about what exactly President Trump was up to and what was he doing during that period, one thing the January 6th Committee winds up doing is taking the time to try to lay that all bare.

And if your primary concern is to say for example, in the immediate aftermath of the riot on January 6th, we need to remove this person from office. You would not have the time to do the many weeks of investigation to fully unpack everything that was happening during that period. And so instead your focus would be much more on what's the thing I can demonstrate right now that persuades people and justifies to people the need to remove this person from office at this moment. And so you might cut the investigation side of things short in order to get to the thing you thought was really crucial, which is the removal part.

But that's not what we did in general. Instead, we waited before we really pursued impeachment at all, in which case the impeachment, if it was not going to be about removal, it really should have been about investigation, and about revelations and making transparent what the misconduct was and then trying to set again, a set of norms and expectations about what would constitute bad behavior moving forward.

Jack Goldsmith: So your understanding of the impeachment power places pretty serious demands on Congress to take its constitutional responsibility seriously. Correct? Is that fair?

Keith Whittington: I think that's fair enough.

Jack Goldsmith: Okay. And so the question is whether, and you addressed this, whether our current Congress and our current political system is capable of that type of seriousness, and especially in a world in which we have a separation of, not of powers where they're adversarial institutions, but rather we've moved towards a kind of, as Pildes and Levinson put it, a separation of parties.

And so how, I guess my one question is how realistic, I'll make it a two part question. How realistic is, are these demands that you're placing on Congress? And isn't it likely that Congress itself will abuse these powers, maybe in under, underuse or overuse of impeachment?

Keith Whittington: It certainly is possible Congress will abuse the power. All power can be abused, and including the impeachment power. And given how Congress conducts itself, it would not be shocking if Congress were fully capable of abusing its power in this context as well.

And I think you're right. It can abuse it in both ways. It can abuse it by impeaching too much and impeaching when it's not really justified. But also abuse its power by failing to impeach when really it had a constitutional responsibility to take action under some circumstances.

We seem to worry a lot more about the possibility of too many impeachments than we worry about not enough impeachments. I think one of the reasons why we probably worry about that is because we feel reasonably confident there's a lot of other checks and balances available to us. And so one thing I try to highlight in the book is that we forget, I think it drops out of our consciousness how many impeachable offenses occur in life and in history, in part because we've found other ways of remedying those impeachable offenses, including notably the power of judicial review.

And so we're much more likely to go to court and try to litigate when we see things that could properly be called impeachable offenses than to go to Congress and try to remove an officer for engaging in that kind of conduct in the first place. And so in some ways we pretty routinely under-impeach across American history from my perspective. But I think we do that for good reason because we've decided there are other tools available to us and tools that actually work better than the impeachment power that we can reasonably turn to instead.

I think parties create a real complication for how the separation of powers operates generally, including checks and balances generally, and the impeachment power is one element, I think, of that, but we could sort of go down the list of how separation of powers works and see it having problems in lots of other places as well.

And so it's the system that we have, we have to recognize that the parties are going to be part of that system and it's going to corrupt the kinds of incentives and behavior of members of Congress. But I don't think it makes the impeachment power as such then useless or completely outdated relative to our system. But it may not be as available to us as the founders might've hoped it would be when they were trying to design the system in the first place, certainly it's not going to work in quite the way that they imagined it would when they were trying to design the system in the first place.

Jack Goldsmith: Yeah. So let me make the same, ask the same question in a different way, and you may give me the same answer. A lot of people think that the impeachment power has both been overused and underused, and therefore that it's basically dead. And overused in the sense that we hear impeachment thrown around a lot. There are a lot of impeachments on the House side that have no prospect of conviction. They seem extremely political in recent years. They seem more frequent. They are more frequent.

And yet on the other hand, people look at the January 6th failure to convict on the Senate side as evidence that you're never going to have a conviction of a president. You're never going to meet the threshold. If that doesn't meet the threshold, nothing will. And so to people who say, given those two trends, that the impeachment power is effectively not available anymore. What would you say?

Keith Whittington: Well, one, I think we shouldn't forget about the, all the other officers that are subject to the impeachment power that we might want to use the impeachment power for, right? We shouldn't lose track of the fact that across American history, the kind of officer that we have impeached most often and most successfully are lower court judges. That they don't necessarily have an incentive to leave when they've engaged in misconduct.

We don't have any other mechanisms available to us to make them leave when they engage in misconduct. And so sometimes they force our hands and require us to impeach and remove them in order to remove those officers. And we want to make sure the impeachment power is still around and relatively functional for when those occasions arise. It is always going to be true though, that it's going to be remarkably hard to impeach and remove a high level political official.

And by that, I mean, not only the president of the United States but I'm also thinking, of course, vice presidents as well, obviously, but even cabinet members, Supreme Court justices, for example. Those are going to be much more politicized. The bar is going to be much higher about what we're going to want. And often I think moreover that the kinds of misconduct that we're talking about in those occasions, it's going to be more controversial, more subject to genuine dispute, not just on a factual level, but also as a conceptual normative level as to, is this the kind of misconduct we ought to remove somebody for?

So we should expect it to be extraordinarily hard to remove those kinds of officers. And as a consequence, I think sort of temper or expectations a little bit about what you can reasonably do with that kind of impeachment power when we're targeting those kinds of officials.

It is true though, that I think the second Trump impeachment is the kind of impeachment where you say, well, if you can't impeach and remove on the basis of that, when can you impeach and remove a president? And there's a couple of features of the second Trump impeachment that's a little striking from that regard.

So I said on the afternoon of January 6th, that the House and Senate ought to, as soon as they're finished certifying the votes move on to impeaching and removing the president. That he engaged in conduct that you could not tolerate him continuing to exercise political power, even for the short period of time that was going to be left until Inauguration Day. And the House chose not to do that. The Senate, too, because the Senate wound up going home.

But the House, in particular, chose not to agree upon a set of resolutions that would win widespread support. They didn't move quickly in order to move those forward. And one can only assume that judgments were being made in both the House and the Senate that the president was sufficiently contained. And that you could then wait him out for the time remaining until inauguration, that he did not pose the kind of danger that would justify his and require, really, his immediate removal. And so you could afford to then do a late impeachment in that sense. And there are consequences to doing a late impeachment in that sense.

But I, if that's the calculation that was being made, then that suggests that they were doing precisely what I think they ought to be doing in some ways of making these looking across the range of remedies that are available to us, both informal as well as formal, trying to identify what the nature of the problem is that we're facing. And then trying to make the choice about what's the best possible remedy that we have to try and deal with this problem as best we can in the situation in front of us.

And the members of Congress ultimately, more or less self consciously, decided we don't actually have to impeach or remove this guy in order to make it through Inauguration Day successfully and at that level, they were right that we made it as a country through Inauguration Day without a lot more problems emerging out of the White House in the meantime.

And so the fact that the power was in our back pocket and could have been used if we really needed it was important as part of that process. But even in that moment, I think we shouldn't lose sight of the fact that we were sort of successful at the thing that we most want, which is we successfully made it through Inauguration Day. And you could imagine the only way of doing that is by removing Trump. But it turns out there are other ways of doing it as well.

Jack Goldsmith: But if you can't meet the two-thirds threshold for conviction in that context, largely due to political loyalties, or party loyalties, it just seems that we're in a world, as long as our current politics persists, that we're in a world where the bar is so high for presidential conviction and removal, so far beyond what happened January 6th, it would have to be something that seemed suicidal to the president's party, in a way that January 6th didn't have to be far beyond that. So, and I guess my last question isn't that a giant shift from the framers’ expectation?

Keith Whittington: I think no question, right? I mean, so all the part of the question is as well, sort of, why isn't some of the politics surrounding, sort of, the late Trump presidency, for example, not such that it was seen as suicidal for the party to continue to rally around the president under those circumstances right? Which goes to not just sort of normal features of these are partisan pressures and partisan incentives, et cetera, because we saw all those collapse, for example, in the Watergate era.

But on the other hand, we saw partisans who were initially shocked and horrified rally around Bill Clinton when his scandal broke and eventually led to his impeachment. We likewise saw that, with Trump, especially the second Trump impeachment as well.

And it's hard to know, I think, if the Articles of Impeachment had been written differently, if they'd been brought to the floor immediately in the aftermath of January 6th. Not only what would House members have done but what would Senators have done if they had a trial on January 7th, for example, instead of having go home, talk to their constituencies, wait around for a couple of weeks, you get a new president inaugurated, and then you're asking them oh, by the way, what should we have done about the old guy who's already left office?

We're asking them a fundamentally different question at that point. So I don't know, you know, so I can't say I'm filled with confidence about what the members of the Senate would have done, even if you'd brought it to ‘em on January 7th, but I don't think we ran that experiment in a fair way. And so I don't actually know for sure that they would have not risen to the occasion in ways I thought they should have and needed to do under those circumstances.

But it is true, you know, I'm depressed about lots of features of our American politics these days. And it is true as well that I think members of Congress have a high constitutional responsibility within our republic. And part of the point of the book is to try to clarify what the nature of those responsibilities are, and call Congress to meet them. And that may be somewhat aspirational, somewhat idealistic, but I think some of that idealism is sort of necessary. We don't want to completely abandon it or throw it away yet.

Jack Goldsmith: Well, that's a good place to end. Congratulations on your new book and thank you very much.

Keith Whittington: Thank you. Appreciate it.

Jack Goldsmith: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies, and the Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja, and your audio engineer this episode was Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening